6.11.2.5†††††††††††††††† EFFECTIVE DATE:†August 27, 1997, unless a later date is cited
at the end of a section.

[08-15-97; 6.11.2.5 NMAC - Rn, 6
NMAC 1.4.5 & A, 11-30-00]

6.11.2.6†††††††††††††††† OBJECTIVE:†To provide a comprehensive framework within
which local school boards and local school districts can carry out their
educational mission and exercise their authority and responsibility to provide
a safe environment for student learning, and further to provide students and
parents with an understanding of the basic rights and requirements necessary to
effectively function in the educational community.

[08-15-97; 6.11.2.6 NMAC - Rn, 6
NMAC 1.4.6, 11-30-00]

6.11.2.7†††††††††††††††† DEFINITIONS:

††††††††††††††† A.††††††††††† "Administrative authority"
means the local school district superintendent, a principal or a person
authorized by either to act officially in a matter involving school discipline
or the maintenance of order. The term may include school security officers, but
only to the extent of their authority as established under written local school
board policies.

††††††††††††††† B.††††††††††† "Criminal acts" are acts
defined as criminal under federal and state law, and any applicable municipal
or county criminal ordinances.

††††††††††††††† C.††††††††††† "Delinquent acts" are acts
so defined in Subsection A of Section 32A-2-3 NMSA
1978 of the Delinquency Act.

††††††††††††††† D.††††††††††† "Detention" means requiring
a student to remain inside or otherwise restricting his or her liberty at times
when other students are free for recess or to leave school.

††††††††††††††† E.††††††††††† "Disciplinarian" means a
person or group authorized to impose punishment after the facts have been determined
by a hearing authority.

†††††††††††††††††††
(1)†††† materially and in fact
disrupts or interferes with the operation of the public schools or the orderly
conduct of any public school activity, including individual classes; or

†††††††††††††††††††
(2)†††† leads
an administrative authority reasonably to forecast that such disruption or
interference is likely to occur unless preventive action is taken.

††††††††††††††† G.††††††††††† "Expulsion" means the
removal of a student from school either permanently or for an indefinite time
exceeding ten (10) school days or a locally established lesser period.

††††††††††††††† I.†††††††††††† "Hearing authority" means
a person or group designated to hear evidence and determine the facts of a case
at the required formal hearing.

††††††††††††††† J.†††††††††††† "Immediate removal" means
the removal of a student from school for one school day or less under emergency
conditions and without a prior hearing.

††††††††††††††† K.††††††††††† "In-school suspension"
means suspending a student from one or more regular classes while requiring the
student to spend the time in a designated area at the same school or elsewhere.

††††††††††††††† L.††††††††††† "Legal limits" include the
requirements of the federal and state constitutions and governing statutes,
standards and regulations, and also include the fundamental common-law
requirement that rules of student conduct be reasonable exercises of the
schools' authority in pursuance of legitimate educational and related
functions. There are special limitations arising from constitutional guarantees
of protected free speech and expression which must be balanced against the
schools need to foster an educational atmosphere free from undue disruptions to
appropriate discipline.

††††††††††††††† M.†††††††††† "Long-term suspension"
means the removal of a student from school for a specified time exceeding
either ten (10) school days or any lesser period a local school board may set
as a limit on temporary suspension.

††††††††††††††† N.††††††††††† "Parent" means the natural
parent, a guardian or other person or entity having custody and control of a
student who is subject to the Compulsory School Attendance Law, Section 22-12-1
et seq. NMSA 1978, or the student if (s)he is not
subject to compulsory attendance.

††††††††††††††† O.††††††††††† "Public school" means the
campus of and any building, facility, vehicle or other item of property owned,
operated, controlled by or in the possession of a local school district. For
purposes of student discipline, the term also includes any non-school premises
being used for school-sponsored activities.

††††††††††††††† P.†††††††††††† "Refusal to cooperate with
school personnel" means a student's willful refusal to obey the lawful
instructions or orders of school personnel whose responsibilities include
supervision of students.

††††††††††††††† Q.††††††††††† "Refusal to identify self"
means a person's willful refusal, upon request from school personnel known or
identified as such to the person, to identify himself
or herself accurately.

††††††††††††††† R.††††††††††† "Review authority" is a
person or group authorized by the local board to review a disciplinarian's
final decision to impose a long-term suspension or expulsion.

†††††††††††††††††††
(1)†††† submission
to such conduct is made either explicitly or implicitly a term or condition of
the advancement of a student in school programs or activities;

†††††††††††††††††††
(2)†††† submission
to or rejection of such conduct by a student is used as the basis for
decisions/opportunities affecting the student;

†††††††††††† †††††††(3)††††
such conduct substantially interferes with a
student's learning or creates an intimidating, hostile or offensive learning
environment.

††††††††††††††† T.††††††††††† "School personnel" means all members of the staff, faculty and administration
employed by the local school board. The term includes school security officers,
school bus drivers and their aides, and also authorized agents of the schools,
such as volunteers or chaperons, whose responsibilities include supervision of
students.

††††††††††††††† U.††††††††††† "Student" means a person
who is enrolled in one or more classes at a public school or a person who was a
student during the previous school year and is participating in a school
sponsored activity connected with his or her prior status as a student.

††††††††††††††† V.††††††††††† "Temporary suspension"
means the removal of a student from school for a specified period of 10 school
days or less after a rudimentary hearing.

†††††††††††††††††††
(1)†††† any
firearm that is designed to, may readily be converted to or will expel a
projectile by the action of an explosion; and

†††††††††††††††††††
(2)†††† any destructive device
that is an explosive or incendiary device, bomb, grenade, rocket having a
propellant charge of more than four ounces, missile having an explosive or
incendiary charge of more than one-quarter-ounce, mine or similar device.

[08-15-97; 6.11.2.7 NMAC - Rn, 6
NMAC 1.4.7, 11-30-00]

6.11.2.8†††††††††††††††† GENERAL PROVISIONS:

††††††††††††††† A.††††††††††† Jurisdiction over students. †All officials, employees and authorized agents
of the public schools whose responsibilities include supervision of students
shall have comprehensive authority within constitutional bounds to maintain
order and discipline in school. In exercising this authority, such officials,
employees and authorized agents of the public schools may exercise such powers
of control, supervision, and correction over students as may be reasonably
necessary to enable them to properly perform their duties and accomplish the
purposes of education. This authority applies whenever students are lawfully
subject to the schools' control, regardless of place. During such periods,
public school authorities shall have the right to supervise and control the
conduct of students, and students shall have the duty to submit to the schools'
authority.† The foregoing is intended to
reflect the common law regarding the rights, duties and liabilities of public
school authorities in supervising, controlling and disciplining students.
Nothing herein shall be construed as enlarging the liability of public school
authorities beyond that imposed by statute, common law or public education
department rule.

††††††††††††††† B.††††††††††† School authority over non-students.
In furtherance of the state's compelling interest in the orderly operation of
the public schools and school activities, school officials have the following
forms of authority over non-students whose actions adversely affect school
operations or activities.

†††††††††††††††††††
(1)†††† On school property: †Local school boards may prohibit entry to and
provide for the removal from any public school building or grounds of any
person who refuses to identify him/herself and state a lawful purpose for
entering. Any person who refuses may be removed by school authorities, who may
use reasonable physical force to accomplish the removal. Alternately, a person
who refuses and who then refuses a lawful request to leave school premises may
be subject to arrest by law officers for criminal offenses including but not
limited to criminal trespass, interference with the educational process or
disorderly conduct. A person who does identify him/herself and states a lawful
purpose may nevertheless be subject to removal by school officials for engaging
in activities prohibited by this rule. The person may also be subject to arrest
by law officers if (s)he is committing any crime.

†††††††††††††††††††
(2)†††† Off school property: †Public school authorities have indirect and
limited authority over the activities of non-students off school property. To
the extent that non-students' conduct at or near schools or school-sponsored
activities may constitute a criminal offense, including the crimes of
interference with the educational process, disorderly conduct or criminal
trespass (after refusing a lawful request to leave), school authorities may
request law enforcement agencies to arrest the offenders.

††††††††††††††† C.††††††††††† Statement of policy. †A primary responsibility of the New Mexico
public schools and their professional staffs shall be to instill in students an
appreciation of our representative form of government, the rights and
responsibilities of the individual or group and the legal processes whereby
necessary changes are effected.

†††††††††††††††††††
(1)†††† The school is a community
and the rules and regulations of a school are the laws of that community. All
persons enjoying the rights of citizenship are subject to the laws of their
community. Each carries with it a corresponding obligation.

†††††††††††††††††††
(2)†††† The right to attend public
school is not absolute. †It is
conditioned on each student's acceptance of the obligation to abide by the
lawful rules of the school community until and unless the rules are changed
through lawful processes.

†††††††††††††††††††
(3)†††† Teachers, administrators
and other school employees also have rights and duties. †Teachers are required by law to maintain a
suitable environment for teaming in their classes and to assist in maintaining
school order and discipline. Administrators are responsible for maintaining and
facilitating the educational program by ensuring an orderly, safe environment
in the public schools. In discharging their duties, all school employees have
the right to be free from intimidation or abuse and to have their lawful
requests and instructions followed.

†††††††††††††††††††
(4)†††† Nothing in this rule shall
be held to affect the due process rights of school employees or their use of
any local school district grievance procedure. This rule does not address
employment disputes.

††††††††††††††† D.††††††††††† Local school board authority: †Local school boards have both the authority
and the responsibility to ensure that suitable rules of student conduct and
appropriate disciplinary processes are established within their school
districts. Within legal limits as defined in Subsection L. of 6.11.2.7 NMAC
above, and subject to the minimums prescribed in this rule, local boards have
discretion to develop such rules, regulations, policies and procedures as they
deem appropriate to local conditions, including policies which afford students
more protection than the minimums established here. Local school boards and
administrative authorities which deem it appropriate may provide for student,
community or appropriate state and local agency participation in the
formulation and enforcement of school rules.

††††††††††††††† E.††††††††††† Severability: Any part of this rule
found by adjudication before a competent tribunal to be contrary to law shall
be stricken without effect to the remainder.

[08-15-97; 6.11.2.8 NMAC - Rn, 6
NMAC 1.4.8, 11-30-00; A, 11-13-09]

6.11.2.9†††††††††††††††† RULES OFCONDUCT FORNEW MEXICO PUBLIC SCHOOLS:†The acts specified in Subsection A. of
6.11.2.9 NMAC below are prohibited in all the public schools of New Mexico.
Within legal limits as defined in Subsection L. of 6.11.2.7 NMAC above, local
school boards have discretion to develop rules of conduct governing all others
area of student and school activity.

††††††††††††††† A.††††††††††† Prohibited activities: The
commission of or participation in the activities designated below is prohibited
in all New Mexico public schools and is prohibited for students whenever they
are subject to school control.† Acts prohibited
by this rule:

†††††††††††††††††††
(1)†††† criminal
or delinquent acts;

†††††††††††††††††††
(2)†††† gang
related activity;

†††††††††††††††††††
(3)†††† sexual
harassment;

†††††††††††††††††††
(4)†††† disruptive
conduct;

†††††††††††††††††††
(5)†††† refusal
to identify self; and

†††††††††††††††††††
(6)†††† refusal
to cooperate with school personnel.

††††††††††††††† B.††††††††††† Regulated activities: †Beyond those activities designated above as
prohibited, all other areas of student conduct may be regulated within legal
limits by local school boards as they deem appropriate to local conditions.
Conduct by non students which affects school operations may be regulated within
legal limits pursuant to any of the forms of authority described in Subsection
B. of 6.11.2.8 NMAC above. Activities subject to local board regulation within
legal limits include, but are not limited to:

†††††††††††††††††††
(1)†††† school
attendance;

†††††††††††††††††††
(2)†††† use
of and access to the public schools, including:

†† †††††††††††††††††††††††††††(a)†††† restrictions on
vehicular traffic on school property,

†††††††††††††††††††††††††††††
(b)†††† prohibition
of or conditions on the presence of non-school persons on school grounds or in
school buildings while school is in session; and

†††††††††††††††††††††††††††††
(c)†††† reasonable
standards of conduct for all persons attending school- sponsored activities or
other activities on school property;

†††††††††††††††††††
(3)†††† students'
dress and personal appearance;

†††††††††† †††††††††(4)††††
use of controlled substances, alcohol and
tobacco in the public schools;

†††††††††††††††††††
(5)†††† speech
and assembly within the public schools;

†††††††††††††††††††
(6)†††† publications
distributed in the public schools;

†††††††††††††† †††††(7)††††
the existence, scope and conditions of
availability of student privileges, including extracurricular activities and
rules governing participation;

†††††††††††††††††††
(8)†††† by statute, Section
22-5-4.7 NMSA 1978, each school district is required to adopt a policy
providing for the expulsion from school, for a period of not less than one
year, of any student who is determined to have knowingly brought a weapon to a
school under the jurisdiction of the local board; the local school board or the
superintendent of the school district may modify the expulsion requirement on a
case-by-case basis; the special rule provisions of Subsection D. of 6.11.2.11
NMAC apply to students with disabilities;

†††††††††††††††††††
(9)†††† the
discipline of students for out-of-school conduct having a direct and immediate
effect on school discipline or the general safety and welfare of the school.

[08-15-97; 6.11.2.9 NMAC - Rn, 6
NMAC 1.4.9, 11-30-00; A, 11-13-09]

6.11.2.10†††††††††††††† ENFORCING RULES OF CONDUCT:

††††††††††††††† A.††††††††††† Enforcing attendance requirements.
Formal enforcement action under the Compulsory School Attendance Law, supra,
and the Family Services Act, Section 32A-3A-1 et seq. NMSA
1978 shall be initiated whenever a student's absences indicate that the law is
being violated. An administrative authority who has reason to believe a student
is violating local school board attendance policies may take whatever further
disciplinary action is deemed appropriate under local policies.

††††††††††††††† B.††††††††††† Search and seizure:† School property assigned to a student and a students person or property while under the authority of
the public schools are subject to search, and items found are subject to
seizure, in accordance with the requirements below.

†††††††††††††††††††
(1)†††† Notice of search
policy.† Students shall be given
reasonable notice, through distribution of written policies or otherwise, of
each school's policy on searches at the beginning of each school year or upon
admission for students entering during the school year.

†††††††††††††††††††
(2) ††††Who may search.† Certified school personnel, school security
personnel and school bus drivers are "authorized persons" to conduct
searches when a search is permissible as set forth below. An authorized person
who is conducting a search may request the assistance of some other person(s),
who upon consent become(s) an authorized person for the purpose of that search
only.

†††††††††††††††††††
(3)†††† When search
permissible.† Unless local school board
policy provides otherwise, an authorized person may conduct a search when (s)he has a reasonable suspicion that a crime or other breach
of disciplinary rules is occurring or has occurred. An administrative authority
may direct or conduct a search under the same conditions and also when (s)he has reasonable cause to believe that a search is
necessary to help maintain school discipline.

†††††††††††††††††††
(4)†††† Conduct of searches;
witnesses.† The following requirements
govern the conduct of permissible searches by authorized persons:

††††††††††††††††††††††††
†††††(a)†††† School property, including lockers and
school buses, may be searched with or without students present unless a local
school board or administrative authority provides otherwise. When students are
not present for locker searches, another authorized person shall serve as a
witness whenever possible. Locks furnished by students should not be destroyed
unless a student refuses to open one or circumstances otherwise render such
action necessary in the judgment of the administrative authority.

††††† ††††††††††††††††††††††††(b)†††† Student vehicles when on campus or
otherwise under school control and students' personal effects which are not
within their immediate physical possession may be searched in accordance with
the requirements for locker searches.

†††††††††††††††††††††††††††††
(c)†††† Physical searches of a students person may be conducted only by an authorized
person who is of the same sex as the student, and except when circumstances
render it impossible may be conducted only in the presence of another
authorized person of the same sex. The extent of the search must be reasonably
related to the infraction, and the search must not be excessively intrusive in
light of the student's age and sex, and the nature of the infraction.

†††††††††††††††††† †(5)††††
Seizure of items: Illegal items, legal items which threaten the safety
or security of others and items which are used to disrupt or interfere with the
educational process may be seized by authorized persons. Seized items shall be
released to appropriate authorities or a student's parent or returned to the
student when and if the administrative authority deems appropriate.

†††††††††††††††††††
(6)†††† Notification of law
enforcement authorities: Unless a local school board policy provides otherwise,
an administrative authority shall have discretion to notify the local
children's court attorney, district attorney or other law enforcement officers
when a search discloses illegally possessed contraband material or evidence of
some other crime or delinquent act.

††††††††††††††† C.††††††††††† Basis for disciplinary action:† A student may appropriately be disciplined by
administrative authorities in the following circumstances:

†††††††††††††††††††
(1)†††† for committing any act
which endangers the health or safety of students, school personnel or others
for whose safety the public school is responsible, or for conduct which
reasonably appears to threaten such dangers if not restrained, regardless of
whether an established rule of conduct has been violated;

†††††††††††††††††††
(2)†††† for violating valid rules
of student conduct established by the local school board or by an
administrative authority to whom the board has delegated rulemaking authority,
when the student knew or should have known of the rule in question or that the
conduct was prohibited; or

†††††††††††††††††††
(3)†††† for
committing acts prohibited by this rule, when the student knew or should have
known that the conduct was prohibited.

††††††††††††††† D.††††††††††† Selection of disciplinary
sanctions:† Within legal limits as
defined in Subsection L. of 6.11.2.7 NMAC above,
local school boards have discretion to determine the appropriate sanction(s) to
be imposed for violations of rules of student conduct, or to authorize
appropriate administrative authorities to make such determinations.

†††††††† †††††††††††(1)†††† School discipline and criminal charges:
Appropriate disciplinary actions may be taken against students regardless of
whether criminal charges are also filed in connection with an incident.

†††††††††††††††††††
(2)†††† Nondiscriminatory enforcement:† Local school boards and administrative
authorities shall not enforce school rules or impose disciplinary punishments
in a manner which discriminates against any student on the basis of race,
religion, color, national origin, ancestry, sex or disability, except to the
extent otherwise permitted or required by law or regulation. This statement
shall not be construed as requiring identical treatment of students for
violation of the same rule; it shall be read as prohibiting differential
treatment which is based on race, religion, color, national origin, ancestry,
sex or disability rather than on other differences in individual cases or
students.

††††††††††††††† E.††††††††††† Corporal punishment:† Corporal punishment shall not be utilized as
a means of enforcing rules of conduct in public schools.

††††††††††††††† F.†††††††††††† Detention, suspension and
expulsion:† Where detention, suspension or
expulsion is determined to be the appropriate penalty, it may be imposed only
in accordance with procedures that provide at least the minimum safeguards
prescribed in† Section 6.11.2.12 NMAC, below. Suspensions or expulsions of students with
disabilities shall be subject to the further requirements of Subsection G of
Section 6.11.2.10 NMAC and Section 6.11.2.11 NMAC below.

††††††††††††††† G.††††††††††† Discipline of students with disabilities:† Students with disabilities are not immune
from school disciplinary processes, nor are they entitled to remain in a
particular educational program when their behavior substantially impairs the
education of other children in the program.†
However, the public schools are required by state law and regulations to
meet the individual educational needs of students with disabilities to the
extent that current educational expertise permits.† Public school personnel may consider any
unique circumstances on a case-by-case basis when determining whether a change
of placement, consistent with the other requirements of 6.11.2.11 NMAC, is appropriate for a student with a disability who
violates a code of conduct as provided in 34 CFR Sec.
300.530.

††††††††††††††††† ††(1)††††
Long-term suspensions or expulsions of students with disabilities shall
be governed by the procedures set forth in Section 6.11.2.11 NMAC below.

†††††††††††††††††††
(2)†††† Temporary suspensions of
students with disabilities may be imposed in accordance with the normal
procedures prescribed in Subsection D of†
Section 6.11.2.12 NMAC below, provided that
the student is returned to the same educational placement after the temporary
suspension and unless a temporary suspension is prohibited under the provisions
of Subsection G, Paragraph (3) of 6.11.2.10 NMAC
below.

†††††††††††††††††††
(3)†††† Program prescriptions. A
student with a disability's individualized education program (IEP), under the Individuals with Disabilities Education
Improvement Act of 2004 (IDEA), need not affirmatively authorize disciplinary
actions which are not otherwise in conflict with this rule. However, the IEP team may prescribe or prohibit specified disciplinary
measures for an individual student with a disability by including appropriate
provisions in the student's IEP. Administrative
authorities shall adhere to any such provisions contained in a student with a
disability's IEP, except that an IEP
team may not prohibit the initiation of proceedings for long-term suspension or
expulsion which are conducted in accordance with this rule.

†††††††††††††††††††
(4)†††† Immediate removal.
Immediate removal of students with disabilities may be done in accordance with
the procedures of Subsection C of Section 6.11.2.12 NMAC
below.

†††† †††††††††††††††(5)†††† A student who has not been determined to
be eligible for special education and related services under 6.31.2 NMAC and who has engaged in behavior that violated a code
of student conduct may assert any of the protections provided for in this
subsection if the conditions set forth in 34 CFR Sec.
300.534 have been met.

†††††††††††††††††††
(6)†††† Referral to and action by
law enforcement and judicial authorities.

†††††††††††††††††††††††††††††
(a)†††† Nothing in these rules of
conduct prohibits an administrative authority from reporting a crime committed
by a student with a disability to appropriate authorities or prevents state law
enforcement and judicial authorities from exercising their responsibilities
with regard to the application of federal and state law to crimes committed by
a student with a disability.

†††††††††††††††††††††††††††††
(b)†††† Transmittal of records.

††††††††††††††††††††††††††††††††††††††† (i)†††† An
administrative authority reporting a crime committed by a student with a
disability must ensure that copies of the special education and disciplinary
records of the student are transmitted, for consideration by the appropriate
authorities, to whom the administrative authority reports the crime.

††††††††††††††††††††††††††
†††††††††††††(ii)†††† An administrative authority reporting a
crime under this section may transmit copies of the studentís special education
and disciplinary records only to the extent that the transmission is permitted
by the Family Educational Rights and Privacy Act.

6.11.2.11†††††††††††††† DISCIPLINARY REMOVALS OF STUDENTS
WITH DISABILITIES:

††††††††††††††† A.††††††††††† General.† The following rules shall apply when a
student with a disability under IDEA violates a rule of conduct as set forth in
this rule which may result in:

†††††††††††††††††††
(1)†††† long-term
suspension or expulsion; or

†††††††††††††††††††
(2)†††† any
other disciplinary change of the studentís current educational placement as specified
in the federal regulations implementing IDEA at 34 CFR Secs.
300.530 through 300.536 and these or other public
education department rules and standards.

††††††††††††††† B.††††††††††† When behavior is not a manifestation
of disability.† For disciplinary changes
in placement that would exceed 10 consecutive school days, if the behavior that
gave rise to the violation of the school code is determined not to be a
manifestation of the childís disability pursuant to Subsection C of this
section, school personnel may apply the relevant disciplinary procedures to
children with disabilities in the same manner and for the same duration as the
procedures would be applied to children without disabilities, except as
provided in Subsection I of this section.

††††††††††††††† C.††††††††††† Manifestation determination.

†††††††††††††††††††
(1)†††† Within 10 school days of
any decision to change the placement of a child with a disability because of a
violation of a rule of student conduct, the administrative authority, the
parent and relevant members of the childís IEP team (as determined by the
parent and the administrative authority) must review all relevant information
in the studentís file, including the childís IEP, any teacher observations and
any relevant information provided by the parents to determine:

††††††† ††††††††††††††††††††††(a)†††† if the conduct in
question was caused by, or had a direct and substantial relationship to the
childís disability; or

†††††††††††††††††††††††††††††
(b)†††† if
the conduct in question was the direct result of the administrative authorityís
failure to implement the IEP.

†††††††††††††††††††
(2)†††† The conduct must be
determined to be a manifestation of the childís disability if the
administrative authority, the parent and relevant members of the childís IEP
team determine that a condition in either Subparagraph (a) or (b) of Paragraph
(1) of Subsection C of 6.11.2.11 NMAC was met.

†††††††††††††††††††
(3)†††† If the administrative
authority, the parent and relevant members of the childís IEP team determine
the condition described in Subparagraph (b) of Paragraph (1) of Subsection C of
6.11.2.11 NMAC was met, the administrative authority must take immediate steps
to remedy those deficiencies.

††††††††††††††† D.††††††††††† Determination that behavior is
manifestation of disability.† If the
administrative authority, the parent and relevant members of the IEP team make
the determination that the conduct was a manifestation of the childís
disability, the IEP team must comply within 34 CFR Sec. 300.530(f).

††††††††††††††† E.††††††††††† Special circumstances.† School personnel may remove a student to an
interim alternative educational setting for not more than 45 school days
without regard to whether the behavior is determined to be a manifestation of
the childís disability, if the childís behavior involves one of the special
circumstances listed in 34 CFR Sec. 300.530(g).†
For purposes of this subsection, the definitions provided in 34 CFR Sec.
300.530(i) shall apply.

††††††††††††††† F.†††††††††††† Determination of setting.† The studentís IEP team determines the interim
alternative educational setting for services under Subsections B and E of this
section.

††††††††††††††† G.††††††††††† Change of placement because of
disciplinary removals.† For purposes of
removals of a student with a disability from the childís current educational
placement under 6.11.2.11 and 6.11.2.12 NMAC, a change of placement occurs if
the conditions provided in 34 CFR Sec. 300.536 are met.

††††††††††††††† H.††††††††††† Parental notification.† On the date on which the decision is made to
make a removal that constitutes a change of placement of a student with a
disability because of a violation of a code of student conduct, the
administrative authority must notify the parents of that decision, and provide
the parents the procedural safeguards notice described in 34 CFR Sec. 300.504.

††††††††††††††† I.†††††††††††† Services.† A student with a disability who is removed
from the studentís current placement pursuant to this section must continue to
receive special education and related services as provided in 34 CFR Sec.
300.530(d).

††††††††††††††† J.†††††††††††† Appeal.

†††††††††††††††††††
(1)†††† The parent of a student
with a disability who disagrees with any decision regarding the placement or
the manifestation determination under this section, or an administrative
authority that believes that maintaining the current placement of the student
is substantially likely to result in injury to the student or others, may appeal the decision by requesting a
hearing.† The hearing is requested by
filing a complaint pursuant to Subsection I of 6.31.2.13 NMAC.

†††††††††††††††††††
(2)†††† A hearing officer who
hears a matter under Paragraph (1) of Subsection J of 6.11.2.11 NMAC, has the
authority provided in 34 CFR Sec. 300.532(b).

†††††††††††††††††††
(3)†††† When an appeal under this
subsection has been made by either the parent or the administrative authority,
the student must remain in the interim alternative educational setting pending
the decision of the hearing officer or until the expiration of the time period
specified in Subsections B or E of this section, which ever occurs first,
unless the parent and the administrative authority agree otherwise.

6.11.2.12†††††††††††††† PROCEDURE FOR DETENTIONS,
SUSPENSIONS AND EXPULSIONS:† The
authority of the state and of local school boards to prescribe and enforce
standards of conduct for public school students must be exercised consistently
with constitutional safeguards of individual student rights. The right to a
public education is not absolute; it may be taken away, temporarily or
permanently, for violations of school rules. But it is a property right which
may only be denied where school authorities have adhered to the minimum
procedural safeguards required to afford the student
due process of law.† This section
prescribes minimum requirements for detention, in-school suspension and
temporary, long-term or permanent removal of students from the public schools.
Local school boards may adopt procedures which afford students more protection
than this rule requires.† The procedures
in this section apply only to disciplinary detentions, suspensions and
expulsions. They do not apply to disenrollment of students who fail to meet
immunization, age, residence or other requirements for valid enrollment, nor to
the removal from school membership reports of students who have been absent
from school for ten (10) consecutive school days in accordance with Subsection
B of Section 22-8-2 NMSA 1978.† Nothing
in this section should be construed as prohibiting school boards or
administrative authorities from involving other school staff, students and
members of the community in the enforcement of rules of student conduct to the
extent they believe is appropriate.

††††††††††††††† A.††††††††††† Post-suspension placement of
students.† Any student suspended from
school shall be delivered directly by a school official to the student's
parent(s), legal guardian or an adult designated by the parent(s) or the legal
guardian, or kept on school grounds until the usual end of the school day.

††††††††††††††† B.††††††††††† Students with disabilities.† This section does not apply to long-term
suspension or expulsion of students who are disabled pursuant to the IDEA or
Section 504.† The procedures for
long-term suspension or expulsion of disabled students are set forth in Section
6.11.2.11 NMAC above.† School personnel
under this section may remove a student with a disability who violates a rule
of student conduct from his or her current placement to an appropriate interim
alternative educational setting, another setting, or suspension, for not more
than 10 consecutive school days (to the extent those alternatives are applied
to students without disabilities), and for additional removals of not more than
10 consecutive school days in that same school year for separate incidents of
misconduct (as long as those removals do not constitute a change of placement
under Subsection G of 6.11.2.11 NMAC above).

††††††††††††††† C.††††††††††† Immediate removal:† Students whose presence poses a continuing
danger to persons or property or an ongoing threat of interfering with the
educational process may be immediately removed from school, subject to the following
rules.

†† †††††††††††††††††(1)†††† A rudimentary hearing, as required for
temporary suspensions, shall follow as soon as possible.

†††††††††††††††††††
(2)†††† Students shall be
reinstated after no more than one school day unless within that time a
temporary suspension is also imposed after the required rudimentary hearing. In
such circumstances, a single hearing will support both the immediate removal
and a temporary suspension imposed in connection with the same incident(s).

†††††††††††††††††††
(3)†††† The school shall exert
reasonable efforts to inform the student's parent of the charges against the
student and the action taken as soon as practicable. If the school has not
communicated with the parent by telephone or in person by the end of the school
day following the immediate removal, the school shall on that day mail a
written notice with the required information to the parent's address of record.

††††††††††††††† D.††††††††††† Temporary suspension.

†††††††††††††††††††
(1)†††† A local school board may
limit temporary suspensions to periods shorter than ten (10) school days.

†††††††††††††††††††
(2)†††† A student facing temporary
suspension shall first be informed of the charges against him or her and, if (s)he denies them, shall be told what evidence supports the
charge(s) and be given an opportunity to present his or her version of the
facts. The following rules apply.

†††††††††††††††††††††††††††††
(a)†††† The hearing may be an
informal discussion and may follow immediately after the notice of the charges
is given.

†††††††††††††††††††††††††
††††(b)†††† Unless the administrative authority
decides a delay is essential to permit a fuller exploration of the facts, this
discussion may take place and a temporary suspension may be imposed within
minutes after the alleged misconduct has occurred.

†† †††††††††††††††††††††††††††(c)†††† A student who denies a charge of
misconduct shall be told what act(s) (s)he is accused
of committing, shall be given an explanation of the evidence supporting the
accusation(s) and shall then be given the opportunity to explain his or her
version of the facts. The administrative authority is not required to divulge
the identity of informants, although (s)he should not
withhold such information without good cause. (S)he is
required to disclose the substance of all evidence on which (s)he proposes to
base a decision in the matter.

†††††††††††††††††††††††††††††
(d)†††† The administrative
authority is not required to allow the student to secure counsel, to confront
or cross-examine witnesses supporting the charge(s), or to call witnesses to
verify the student's version of the incident, but none of these is prohibited.

†††††††††††††††††††††††††††††
(e)†††† The school shall exert
reasonable efforts to inform the student's parent of the charges against the
student and their possible or actual consequence as soon as practicable. If the
school has not communicated with the parent by telephone or in person by the
end of the first full day of suspension, the school shall on that day mail a
written notice with the required information to the parent's address of record.

††††††††††††††† E.††††††††††† In-school suspension.

†††††††††††††††††††
(1)†††† In-school suspension may
be imposed with or without further restriction of student privileges. Any
student who is placed in an in-school suspension which exceeds ten (10) school
days must be provided with an instructional program that meets both state and
local educational requirements. Student privileges, however, may be restricted
for longer than ten (10) school days.

†††††††††††††††††††
(2)†††† In-school suspensions of
any length shall be accomplished according to the procedures for a temporary
suspension as set forth above. A local school board may limit the length of
in-school suspensions which may be accomplished under temporary suspension
procedures. No in-school suspension student shall be denied an opportunity to
eat lunch or reasonable opportunities to go to the restroom.

††††††††††††††† F.†††††††††††† Detention.

†††††††††††††††††††
(1)†††† Detention may be imposed
in connection with in-school suspension, but is distinct from in-school suspension
in that it does not entail removing the student from any of his or her regular
classes.

†††††††††††††††††††
(2)†††† The authority of the
schools to supervise and control the conduct of students includes the authority
to impose reasonable periods of detention during the day or outside normal
school hours as a disciplinary measure. No detained student shall be denied an
opportunity to eat lunch or reasonable opportunities to go to the restroom.
Reasonable periods of detention may be imposed in accordance with the
procedures for temporary suspension.

††††††††††††††† G.††††††††††† Long-term suspension and expulsion.

†††††††††††††††††††
(1)†††† Each local school board
shall authorize appropriate administrative authorities to initiate procedures
leading to long-term suspension or expulsion. Where prompt action to suspend a
student long-term is deemed appropriate, a temporary suspension may be imposed
while the procedures for long-term suspension or expulsion are activated.
However, where a decision following the required formal hearing is delayed
beyond the end of the temporary suspension, the student must be returned to
school pending the final outcome unless the provisions of Subsection G,
Paragraph (4), Subparagraphs (j) and (k) of Section 6.11.2.12 NMAC below apply.

††††††††††††† ††††††(2)††††
A student who has been validly expelled or suspended is not entitled to
receive any educational services from the local district during the period of
the exclusion from school. A local school board may provide alternative
arrangements, including correspondence courses at the student's or parent's
expense pursuant to public education department requirements, if the board
deems such arrangements appropriate.

†††††††††††††††††††
(3)†††† Each local school board
shall establish, or shall authorize appropriate administrative authorities to
establish, appropriate processes for handling long-term suspensions and
expulsions. Unless the terms expressly indicate otherwise, nothing in the
procedures below shall be construed as directing that any required decision be
made by any particular person or body or at any particular level of
administrative organization.

†††††††††††††††††††
(4)†††† The following rules shall
govern the imposition of long-term suspensions or expulsions:

†††††††††††††††††††††††††††††
(a)†††† Hearing authority;
disciplinarian.† The same person or group
may, but need not, perform the functions of both hearing authority and
disciplinarian. Where the functions are divided, the hearing authority's
determination of the facts is conclusive on the disciplinarian, but the
disciplinarian may reject any punishment recommended by the hearing authority.

†††††††††††††††††††††††††††††
(b)†††† Review authority.† Unless the local school board provides
otherwise, a review authority shall have discretion to modify or overrule the
disciplinarian's decision, but may not impose a harsher punishment. A review
authority shall be bound by a hearing authority's factual determinations except
as provided in Subsection G, Paragraph (4), Subparagraph (o) of Section 6.11.2.12
NMAC below.

†††††††††††††††††††††††††††††
(c)†††† Disqualification.† No person shall act as hearing authority,
disciplinarian or review authority in a case where (s)he
was directly involved in or witnessed the incident(s) in question, or if (s)he
has prejudged disputed facts or is biased for or against any person who will
actively participate in the proceedings.

†††††††††††††††††††††††††††††
(d)†††† Local board
participation.† A local board may act as
hearing authority, disciplinarian or review authority for any cases involving
proposed long-term suspensions or expulsions. Whenever a
quorum of the local board acts in any such capacity, however, the Open Meetings
Act, Section 10-15-1 et seq., NMSA 1978 requires a public meeting.

††††††††††††††††††††††
†††††††(e)†††† Initiation of procedures.† An authorized administrative authority shall
initiate procedures for long-term suspension or expulsion of a student by
designating a hearing authority and disciplinarian in accordance with local
board policies, scheduling a formal hearing in consultation with the hearing
authority and preparing and serving a written notice meeting the requirements
of Subsection G, Paragraph (4), Subparagraph (h) of Section 6.11.2.12 NMAC
below.

†††††††††††††††††††††††††††††
(f)†††† Service of notice.† The written notice shall be addressed to the
student, through his or her parent(s), and shall be served upon the parent(s)
personally or by mail.

†††††††††††††††††††††††††††††
(g)†††† Timing of hearing.† The hearing shall be scheduled no sooner than
five (5) nor later than ten (10) school days from the date of receipt of the
notice by the parent(s). The hearing authority may grant or deny a request to
delay the hearing in accordance with the provisions of Subsection G, Paragraph
(4), Subparagraph (i) of Section 6.11.2.12 NMAC
below.

†††††††††††††††††††††††††††††
(h)†††† Contents of notice.† The written notice must contain all of the
following information, parts of which may be covered by appropriate reference
to copies of any policies or regulations furnished with the notice:

††††††††††††††††††††††††††††††††††††††† (i)†††† the school rule(s) alleged to have been violated, a concise
statement of the alleged act(s) of the student on which the charge(s) are based
and a statement of the possible penalty;

†††††††††††††††††††††††††††††††††††††††
(ii)†††† the
date, time and place of the hearing, and a statement that both the student and
parent are entitled and urged to be present;

†††††††††††††††††††††††††††††††††††††††
(iii)†††† a clear statement that
the hearing will take place as scheduled unless the hearing authority grants a
delay or the student and parent agree to waive the hearing and comply
voluntarily with the proposed disciplinary action or with a negotiated penalty,
and a clear and conspicuous warning that a failure to appear will not delay the
hearing and may lead to the imposition of the proposed penalty by default;

†††††††††††††††††††††††††††††††††††††††
(iv)†††† a statement that the
student has the right to be represented at the hearing by legal counsel, a
parent or some other representative designated in a written notice filed at
least seventy-two (72) hours before the hearing with the contact person named
pursuant to Subsection G, Paragraph (4), Subparagraph (h), Sub-subparagraph (vi)
of Section 6.11.2.12 NMAC below;

†††††††††††††††††††††††††††††††††††††††
(v)†††† a
description of the procedures governing the hearing;

†††††††††††††††††††††††††††††††††††††††
(vi)†††† the name, business
address and telephone number of a contact person through whom the student,
parent or designated representative may request a delay or seek further
information, including access to any documentary evidence or exhibits which the
school proposes to introduce at the hearing; and

†††††††††††††††††††††††††††††
††††††††††(vii)†††† any other
information, materials or instructions deemed appropriate by the administrative
authority who prepares the notice.

†††††††††††††††††††††††††††††
(i)††††
Delay of hearing.† The hearing
authority shall have discretion to grant or deny a request by the student or
the appropriate administrative authority to postpone the hearing. Such
discretion may be limited or guided by local school board policies not
otherwise inconsistent with this rule.

†††††††††††††††††††††††††††††
(j)†††† Students status pending
hearing.† Where a student has been
suspended temporarily and a formal hearing on long-term suspension or expulsion
will not occur until after the temporary suspension has expired, the student shall
be returned to school at the end of the temporary suspension unless:

†††††††††††††††††††††††††††††††††††††††
(ii)†††† the
student and parent(s) have knowingly and voluntarily waived the students right
to return to school pending the outcome of the formal proceedings, or

†††††††††††††††††††††††††††††††††††††††
(iii)†††† the
appropriate administrative authority has conducted an interim hearing pursuant
to a written local school board policy made available to the student which
affords further due process protection sufficient to support the student's
continued exclusion pending the outcome of the formal procedures.

†††††††††††††††††††††††††††††
(k)†††† Waiver of hearing;
voluntary compliance or negotiated penalty.†
A student and his or her parent(s) may elect to waive the formal hearing
and review procedures and comply voluntarily with the proposed penalty, or may
waive the hearing and review and negotiate a mutually acceptable penalty with
the designated disciplinarian. Such a waiver and compliance agreement shall be
made voluntarily, with knowledge of the rights being relinquished, and shall be
evidenced by a written document signed by the student, the parent(s), and the
appropriate school official.

†††††††††††††††††††††††††††††
(l)†††† Procedure for hearing and
decision.† The formal hearing is not a
trial. It is an administrative hearing designed to ensure a calm, orderly
determination by an impartial hearing authority of the facts of a case of
alleged serious misconduct. Technical rules of evidence and procedure do not
apply. The following-rules govern the conduct of the hearing and the ultimate
decision.

††††††††††††††††††††††††††††††††††††††† (i)†††† The school
shall have the burden of proof of misconduct.

†††††††††††††††††††††††††††††††††††††††
(ii)†††† The student and his or
her parent shall have the following rights:†
The right to be represented by legal counsel or other designated
representative, however, the school is not required to provide representation;
the right to present evidence, subject to reasonable requirements of
substantiation at the discretion of the hearing authority and subject to
exclusion of evidence deemed irrelevant or redundant; the right to confront and
cross-examine adverse witnesses, subject to reasonable limitation by the
hearing authority; the right to have a decision based solely on the evidence
presented at the hearing and the applicable legal rules, including the
governing rules of student conduct.

†††††††††††††††††††††††††††††††††††††††
(iii)†††† The hearing authority
shall determine whether the alleged act(s) of misconduct have been proved by a
preponderance of the evidence presented at a hearing at which the student or a designated representative have appeared.

†††††††††††††††††††††††††††††††††††††††
(iv)†††† If no one has appeared on
the students behalf within a reasonable time after the
announced time for the hearing, the hearing authority shall determine whether
the student, through the parent, received notice of the hearing. If so, the
hearing authority shall review the schools' evidence to determine whether it is
sufficient to support the charges(s) of misconduct.

††††††††††††††††††††††††††††††††††††††† (v) ††††A hearing authority who is also a
disciplinarian shall impose an appropriate sanction if (s)he finds that the
allegations of misconduct have been proved under the standards of either
Subsection G, Paragraph (4), Subparagraph (l), Sub-subparagraph (iii) or
Sub-subparagraph (iv) of Section 6.11.2.12 NMAC above. A hearing authority who
is not a disciplinarian shall report its findings, together with any
recommended sanction, to the disciplinarian promptly after the hearing.

††††††††††††††††††††††††††††††† ††††††††(vi)††††
Arrangements to make a tape recording or keep minutes of the proceedings
shall be made by the administrative authority who
scheduled the hearing and prepared the written notice. A verbatim written
transcript is not required, but any minutes or other written record shall
fairly reflect the substance of the evidence presented.

†††††††††††††††††††††††††††††††††††††††
(vii)†††† The hearing authority
may announce a decision on the question of whether the allegation(s) of
misconduct have been proved at the close of the hearing. A hearing authority
who is also a disciplinarian may also impose a penalty at the close of the
hearing.

†††††††††††††††††††††††††††††††††††††††
(viii)†††† In any event, the
hearing authority shall prepare and mail or deliver to the student, through the
parent, a written decision within five (5) working days after the hearing. The
decision shall include a concise summary of the evidence upon which the hearing
authority based its factual determinations. A hearing authority who is also a
disciplinarian shall include in the report a statement of the penalty, if any,
to be imposed, and shall state reasons for the chosen penalty. A hearing
authority who is not a disciplinarian shall forward a copy of his or her
written decision to the disciplinarian forthwith. The disciplinarian shall
prepare a written decision, including reasons for choosing any penalty imposed,
and mail or deliver it to the student, through the parent, within five (5)
working days of receipt of the hearing authority's report.

†††††††††††††††††††††††††††††††††††††††
(ix)†††† A disciplinarian who is
not a hearing authority may observe but not participate in the proceedings at a
formal hearing. If the disciplinarian has done so and if the hearing authority
announces a decision at the close of the hearing, the disciplinarian may also
announce his or her decision at that time.

†††††††††††††††††††††††††††††††††††††††
(x)†††† The disciplinarian's
decision shall take effect immediately upon initial notification to the parent,
either at the close of the hearing or upon receipt of the written decision. If
initial notification is by mail, the parent shall be presumed to have received
the notice on the fifth calendar day after the date of mailing unless a receipt
for certified mail, if used, indicates a different date of receipt.

†††††††††††††††††††††††††††††
(m)†††† Effect of decision.† If the hearing authority decides that no
allegation(s) of misconduct have been proved, or if the disciplinarian declines
to impose a penalty despite a finding that an act or acts of misconduct have
been proved, the matter shall be closed. If the disciplinarian imposes any
sanction on the student, the decision shall take effect immediately upon
notification to the parent and shall continue in force during any subsequent
review.

†††††††††††††††††††††††††††††
(n)††††
Right of review.† Unless the local
school board was the disciplinarian, a student aggrieved by a disciplinarian's
decision after a formal hearing shall have the right to have the decision
reviewed if the penalty imposed was at least as severe as a long-term
suspension or expulsion, an in-school suspension exceeding one school semester
or a denial or restriction of student privileges for one semester or longer. A
local school board may grant a right of review for less severe penalties. Local
school boards shall establish appropriate mechanisms for review except where
the local board was the disciplinarian, in which case its decision is final and
not reviewable administratively.† A
student request for review must be submitted to the review authority within ten
(10) school days after the student is informed of the disciplinarian's
decision.

†††††††††††††††††††††††††††††
(o)†††† Conduct of review.† Unless the local board provides otherwise, a
review authority shall have discretion to modify the disciplinarian's decision,
including imposing any lesser sanction deemed appropriate. A review authority
shall be bound by the hearing authority's factual determinations unless the
student persuades the review authority that a finding of fact was arbitrary,
capricious or unsupported by substantial evidence or that new evidence which
has come to light since the hearing and which could not with reasonable
diligence have been discovered in time for the hearing would manifestly change
the factual determination. Upon any such finding, the review authority shall
have discretion to receive new evidence, reconsider evidence introduced at the
hearing or conduct a de novo hearing. In the absence of any such finding, the
review shall be limited to an inquiry into the appropriateness of the penalty
imposed.

†††††††††††††††††††††††††††††
(p)†††† Form of review.† Unless the local board provides otherwise, a
review authority shall have discretion to conduct a review on the written
record of the hearing and decision in the case, to limit new submissions by the
aggrieved student and school authorities to written materials or to grant a
conference or hearing at which the student and his or her representative, and
school authorities may present their respective views in person. Where a
conference or hearing is granted, the record-keeping requirements of Subsection
G., Paragraph (4), Sub-paragraph (l), Sub-sub-paragraph (vi)
of Section 6.11.2.12 NMAC above apply.

†††††††††††††††† †††††††††††††(q)†††† Timing of review.† Except in extraordinary circumstances, a
review shall be concluded no later than fifteen (15) working days after a
student's written request for review is received by the appropriate
administrative authority.

†††††† †††††††††††††††††††††††(r)†††† Decision.†
A review authority may announce a decision at the close of any
conference or hearing held on review. In any event, the review authority shall
prepare a written decision, including concise reasons, and mail or deliver it
to the disciplinarian, the hearing authority and the student, through the
parent, within ten (10) working days after the review is concluded.

†††††††††††††††††††††††††††††
(s)†††† Effect of decision.† Unless the local school board provides
otherwise, a review authority's decision shall be the final administrative
action to which a student is entitled.

PRE-NMAC HISTORY:†The material in this part was derived
from that previously filed with the State Records Center and Archives under:
State Board of Education (SBE) Regulation No. 68-2,
Loco Parentis, filed February 6, 1968;

SBE Regulation No. 71-5, Rights
and Responsibilities of the Public Schools, filed July 1, 1971;

SBE Regulation No. 71-6, Rights
and Responsibilities of the Public Schools, filed August 26, 1971;